US Fair Housing Act: what it bans, who is exempt, how to complain

In this article

Written by

Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

About Kooky and Shaka →

Almost every home sale, rental, mortgage and listing in the United States sits under one federal law. The Fair Housing Act decides what a landlord may say in an advertisement, how a lender may price a loan and what a new apartment block must look like inside. It also gives anyone who believes they were treated unfairly a route to a federal investigation that costs them nothing, provided they use it in time.

This guide sets out the federal rule only: what the Act prohibits, the small group of owners and organisations it exempts, who answers for an agent's conduct, and how a complaint moves from a first report to a hearing or a courtroom. It rests on the regulations of the Department of Housing and Urban Development (HUD), on HUD's own description of its complaint process and on the Department of Justice's summary of the Act. State and local fair housing laws, which can add protected groups of their own, are outside its scope.

Sources: HUD's Fair Housing Act overview and its description of the complaint process; title 24 of the Code of Federal Regulations, part 103.

What the law is and where it applies

The Fair Housing Act is title VIII of the Civil Rights Act of 1968, amended in 1988. It sits in title 42 of the United States Code, from section 3601 onwards. HUD's rules interpreting it are in title 24 of the Code of Federal Regulations, part 100, and the rules for handling complaints are in part 103. Section numbers in this guide refer to those two parts.

HUD describes the Act as covering the renting or buying of a home, getting a mortgage, seeking housing assistance and other housing-related activities, in nearly all housing. Section 100.5 of the regulations lists the fields in the same spirit: sales, rentals, advertising, brokerage services and what the rules call residential real estate-related transactions, meaning loans, loan purchases, and the selling, brokering and appraising of homes.

The word "dwelling" is wide. Section 100.20 defines it as a building, a structure or a part of one that is occupied as a residence, or designed to be, by one or more families. Vacant land offered for sale or lease for building such a home counts too. A "person" under the same section includes individuals, corporations, partnerships, associations and trusts, so the duties fall on companies and organisations as much as on private owners.

The seven protected characteristics

According to HUD, the Act protects people from discrimination because of race, colour, national origin, religion, sex, familial status and disability. The regulations still use the older word "handicap" for the last of these; the two terms describe the same protection.

Two of the seven arrived with the 1988 amendment. Section 103.1 of the complaint rules records that complaints about handicap and familial status are covered only for practices that took place on or after 12 March 1989.

Familial status has a precise meaning. Section 100.20 defines it as one or more individuals under the age of 18 living with a parent, with another person who has legal custody, or with someone that parent or custodian has designated in writing. The protection reaches further than existing households: it also covers a person who is pregnant and a person who is in the process of securing legal custody of a child. In practice, the Department of Justice says, this bars refusing to rent or sell to families with children, confining them to one part of a complex, setting unreasonable occupancy limits and restricting their access to recreational services.

Disability is defined in section 100.201 as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having one. The definition excludes the current illegal use of, or addiction to, a controlled substance.

What a seller, landlord or agent may not do

The core prohibitions are in subpart B of part 100. Each applies when the conduct happens because of one of the seven characteristics.

Refusing to deal. Section 100.60 makes it unlawful to refuse to sell or rent after a bona fide offer, meaning a genuine one, or to refuse to negotiate. Its examples include failing to accept such an offer, setting a different sale price or rental charge, and using different qualification criteria, application fees or credit analysis. Evicting a tenant because of a protected characteristic, the tenant's own or a guest's, falls under the same section.

Different terms and services. Section 100.65 covers the conditions of the deal once it exists. Different lease provisions, such as rental charges, security deposits, down payments or closing requirements, are unlawful when they turn on a protected characteristic. So is failing or delaying maintenance or repairs, and so is failing to process an offer or to pass it on accurately. For an agent, that last example is a reminder that the duty covers the paperwork as well as the showing.

Advertisements, statements and notices. Section 100.75 bars any notice, statement or advertisement that indicates a preference, a limitation or discrimination. It applies to written and oral statements alike, made by a person engaged in selling or renting homes. The written material named in the rule runs from applications, flyers and brochures to deeds, signs, banners, posters and billboards. Words, photographs and symbols that signal a home is open to one group or closed to another are given as examples, as is choosing media or locations so that part of the market never sees the offer.

Saying a home is gone when it is not. Section 100.80 prohibits giving inaccurate or untrue information about availability, such as telling someone an available home has been sold or rented. The rule expressly covers false information given to testers, that is, people who ask about a home in order to check compliance, whether or not they actually want to live there.

Steering, blockbusting and listing services

Three practices in the regulations concern the daily work of brokerages most directly.

Steering is addressed in section 100.70. It is unlawful to restrict a person's choices in a way that perpetuates, or tends to perpetuate, segregated housing patterns. The examples are concrete: discouraging someone from inspecting, buying or renting a home; exaggerating its drawbacks or keeping quiet about its good points; telling a buyer they would not be comfortable with the neighbours; and assigning a person to a particular area of a development or a particular floor of a building.

Blockbusting is covered by section 100.85. It means trying to induce someone, for profit, to sell or rent by talking about the arrival in the neighbourhood of people of a particular race, colour, religion, sex, familial status, national origin or disability. No profit actually has to be made; it is enough that profit was a factor. The rule names uninvited solicitations for listings that suggest a neighbourhood is changing, and claims that a group's arrival will bring lower property values, more crime or declining schools.

Access to the trade's own infrastructure is protected by section 100.90. Denying a person access to, or membership of, a multiple listing service or a brokers' organisation is unlawful, as is setting different fees, different membership standards or different member benefits.

Lending and appraisals

Subpart C of part 100 applies the Act to money. Under section 100.110, anyone whose business includes residential real estate-related transactions may not discriminate in making them available or in their terms.

Section 100.120 covers the making of loans and other financial assistance, including giving inaccurate information about what is available or what is required. Section 100.130 covers the terms themselves: the type of loan, its amount, interest rate, cost and duration, the way creditworthiness is assessed, and how the loan is serviced afterwards. Section 100.125 extends the rule to the secondary market, barring a refusal to buy loans, or buying them on different terms, because of a protected characteristic; buying loans according to neighbourhood is one of its examples.

Appraisals are covered by section 100.135. An appraisal is defined there as an estimate or opinion of the value of a residential property made in a business context. An appraiser may weigh any factor other than the protected ones. Using an appraisal that a person knows, or reasonably should know, improperly took a protected characteristic into account is given as an example of unlawful conduct.

Disability: modifications, accommodations and design

Disability carries three duties that the other characteristics do not, set out in subpart D.

Reasonable modifications. Under section 100.203, a landlord may not refuse permission for reasonable modifications of existing premises, made at the tenant's own expense, where they are needed for full enjoyment of the home. The landlord may ask for a reasonable description of the work and for assurance that it will be done properly and with the required permits. Permission may be conditioned on restoring the interior at the end of the tenancy, reasonable wear and tear excepted, but the customary security deposit may not be raised for a tenant with a disability. The regulation gives two examples. A tenant who installs grab bars may be asked to remove them and repair the wall, but not to take out the reinforcement behind it. A tenant who widens a doorway usually cannot be required to narrow it again.

Reasonable accommodations. Section 100.204 concerns rules rather than walls. A housing provider may not refuse a reasonable accommodation in its rules, policies, practices or services when one is needed to give a person with a disability an equal opportunity to use and enjoy a home, common areas included. The regulation's first example is a blind applicant with a guide dog and a building with a no-pets policy: refusing the dog is a violation. Its second is a complex of 300 units with 450 parking spaces allocated first come, first served, which must reserve a space near the unit of a resident with a mobility impairment who asks for one.

Design and construction. Section 100.205 applies to covered multifamily dwellings first occupied after 13 March 1991. Those are buildings with four or more units that have a lift, and the ground-floor units of other buildings with four or more units. They must have an accessible entrance, unless the terrain makes that impractical, as well as accessible common areas, doors wide enough for a wheelchair, an accessible route into and through each unit, switches, sockets and thermostats in reachable positions, reinforced bathroom walls for grab bars, and kitchens and bathrooms a wheelchair user can use. The Department of Justice says developers, builders, owners and architects may all be liable for a design that falls short.

There is a limit on the tenant's side too. Section 100.202 does not require renting to a person whose tenancy would be a direct threat to the health or safety of others. The Department of Justice stresses that this must be judged individually, never assumed from the disability itself.

Who is exempt, and how narrow the exemptions are

The exemptions are few, and each comes with conditions that are easy to fail. They are in section 100.10 and, for senior housing, in subpart E.

The owner exemption for a single-family house has a condition that is easy to overlook. It is lost the moment the owner uses a real estate broker, agent or salesperson, or the services of anyone in the business of selling or renting homes. Section 100.20 defines that business by activity over the preceding 12 months: taking part as a principal in three or more sales or rentals, acting as an agent in two or more, other than the sale of one's own home, or owning a building designed for or occupied by five or more families. A home listed through a brokerage is therefore inside the Act however few houses its owner has.

As an illustration with invented figures, take an owner with two single-family houses who lives in one and rents out the other directly, with no agent. That owner is under the three-house limit. If the same owner sells a house they have never lived in, the exemption covers only one such sale in any 24-month period.

Housing for older persons is exempt from the familial status provisions and from nothing else. Section 100.303 covers housing intended for and solely occupied by people aged 62 or over. Section 100.304 covers housing intended and operated for people aged 55 or over, and section 100.305 sets its test: at least 80 per cent of the occupied units must have at least one occupant aged 55 or over. As a worked example with illustrative figures, a community with 120 occupied units would need 96 of them to meet that test, since 80 per cent of 120 is 96. Section 100.304 points to further conditions in sections 100.306 and 100.307, which this guide does not cover.

Two general provisions sit beside the exemptions. Reasonable local, state or federal limits on the number of occupants of a home remain applicable. And the Act does not prohibit conduct against a person because that person has been convicted of the illegal manufacture or distribution of a controlled substance.

Who answers for an agent's conduct

Section 100.7 sets out two kinds of liability, and both matter to anyone who employs or instructs others.

Direct liability covers a person's own conduct. It also covers failing to correct promptly, and to end, a discriminatory practice by an employee or agent when the person knew or should have known of it. The same applies to the conduct of a third party, such as another resident, where the person knew or should have known and had the power to correct it. The corrective step may not penalise the person who suffered the discrimination: evicting the complainant, for example, is not a remedy.

Vicarious liability goes further. Under section 100.7(b), a person is liable for the discriminatory conduct of their agent or employee whether or not they knew or should have known of it, in line with the law of agency. A broker who never heard the remark a salesperson made at a showing, or an owner who never saw the advertisement a manager placed, can still answer for it. Section 100.20 defines a broker or agent broadly, as anyone authorised to act for another in matters related to the sale or rental of homes.

Section 100.5 also states that a practice may be shown to be unlawful through its discriminatory effect, even without discriminatory intent, under a standard set out in section 100.500. The text of that section and its current status were not verified for this guide, so it is not described here. HUD's overview page does say that new guidance from its fair housing office prioritises cases with strong evidence of intentional discrimination, and that certain earlier guidance documents have been withdrawn.

How to file a complaint, and by when

Anyone who has been, or will be, harmed by a discriminatory housing practice may file, according to HUD. Section 103.15 confirms that a complaint can concern discrimination that is about to happen. The government charges no fee or cost to the person who files.

HUD's reporting page gives three ways in: online with its Office of Fair Housing and Equal Opportunity, known as FHEO; by telephone, where an intake specialist takes the details; or by printing form 903.1 and posting it to the regional FHEO office. The office helps with drafting, and section 103.20 allows an organisation, another individual or a lawyer to act for the person.

A complaint needs five things, HUD says:

1. The name and address of the person filing.
2. The name and address of the person or organisation complained about.
3. The address, or another identification, of the housing involved.
4. A short description of what happened.
5. The date or dates of the alleged violation.

The deadline is strict. HUD states that under the Fair Housing Act a complaint must be filed within one year of the last date of the alleged discrimination. Section 103.35 says the same and adds that where there are several acts, or a continuing one, the year runs from the last incident.

A second clock runs alongside. A person may go straight to court instead of, or as well as, filing with HUD. HUD puts that deadline at two years from the most recent discriminatory act, and the time HUD spends processing a complaint does not count towards the two years.

From investigation to charge

Once a complaint is accepted, part 103 sets a series of short time limits.

The respondent is the person or body the complaint names. Its answer is optional, must be signed and must carry an affirmation under penalty of perjury; it may raise any defence that would be available in court. HUD must also notify the person who filed, and that notice warns that retaliation is prohibited.

A complaint is not always investigated by HUD itself. Where a state or local agency enforces a law that HUD has certified as substantially equivalent, section 103.100 requires HUD to refer the complaint there first. HUD may take the complaint back if the agency agrees, loses its certification, fails to start within 30 days or does not move with reasonable promptness.

The 100-day period is a target, not a guarantee: if it is missed, HUD must write to the parties with its reasons. The investigation ends with a final investigative report, which the parties may obtain.

Conciliation runs alongside throughout. Section 103.300 requires HUD to try to bring the parties to agreement from filing until a charge is issued or the complaint is dismissed, and HUD describes taking part as voluntary. An agreement must be in writing, signed by both sides and approved by HUD, which then monitors compliance.

To see how the limits fit together, take a worked example with invented dates, assuming a last incident on 10 June 2024. The one-year limit for HUD would run to 10 June 2025. If the complaint were filed on 2 September 2024, notice to the respondent would be due by 12 September 2024, and the 100-day target for the determination would fall on 11 December 2024. If a charge were served on all parties that same day, the 20 days to choose a federal court would end on 31 December 2024. How a court counts days in a real case is a legal question; the example only shows the order of the clocks.

Remedies, private lawsuits and the Justice Department

After a charge, the case is heard by a HUD administrative law judge unless a complainant, a respondent or an aggrieved person elects a federal court trial within the 20 days. Before the judge, HUD's lawyers represent the complainant at no cost, HUD says, and the hearing is held in or near the place where the discrimination is alleged to have occurred. If any party elects court, HUD refers the case to the Department of Justice, which files a civil suit in the federal district court, and either side may ask for a jury.

The remedies differ in one respect. According to HUD, an administrative law judge who finds a violation may award compensation for actual damages, including out-of-pocket expenses and emotional distress, order injunctive and other equitable relief such as making the housing available, award reasonable attorney's fees and impose a civil penalty to vindicate the public interest. A federal court may award the same compensation, relief and fees, and punitive damages in place of the civil penalty. The dollar amounts of the civil penalties were not verified for this guide and are not given here.

A private lawsuit remains open within its two-year limit, at the person's own cost, although HUD notes that a court may appoint a lawyer for someone who cannot afford one. That route may be closed to a person who has signed a HUD conciliation agreement, or whose case an administrative law judge has begun to hear.

The Department of Justice has its own role beyond referred cases. It brings actions where there is a pattern or practice of discrimination, or where a denial of rights to a group raises an issue of general public importance, and it may bring criminal proceedings where force or the threat of force is used to interfere with fair housing rights. Complaints that turn on local zoning or land use are referred to it by HUD under section 103.400.

Retaliation is treated as a violation in itself. HUD states that it is illegal to retaliate against any person for making an allegation, and that this holds at any time, even after an investigation has ended.

The Act is broad and its exemptions are narrow, but its protection runs on a clock: one year to reach HUD, two to reach a court.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

About Kooky and Shaka →